Wolf v. USA

Filing 12

ORDER GRANTING 11 First MOTION to Withdraw as Attorney and DENYING 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Shawn W Wolf. Signed by Judge Nancy J. Rosenstengel on 3/8/17. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAWN W. WOLF,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 16-CV-527-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is currently before the Court on the pro se Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Shawn Wolf (Doc. 1).
Also before the Court is the motion to withdraw filed by Assistant Federal Public
Defender Thomas Gabel (Doc. 11). For the reasons explained below, Mr. Gabel’s motion
to withdraw is granted, and the § 2255 petition is denied.
BACKGROUND
Petitioner Shawn Wolf was charged by complaint and later indicted on one count
of distribution of heroin. United States v. Wolf, SDIL Case No. 3:11-cr-30015, Docs. 1, 16.
He pleaded guilty to that charge on September 8, 2011. Id. at Doc. 31. The Government
and Wolf determined, and the presentence investigation report (“PSR”) later confirmed,
that Wolf was subject to an enhanced sentence under the Career Offender provision of
the United States Sentencing Guidelines, U.S.S.G. §§ 4B1.1 and 4B1.2, based on his prior
felony convictions. Id. at Docs. 31, 39. At sentencing on December 19, 2007, District Judge
G. Patrick Murphy adopted the PSR in full and sentenced Wolf as a career offender to
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151 months’ in prison. Id. at Docs. 43, 44.
On June 10, 2011, Wolf filed a habeas corpus petition under 28 U.S.C. § 2255
challenging his enhanced sentence as a career offender based on the Supreme Court’s
decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (Doc. 1). In Johnson, the Supreme
Court invalidated the residual clause in the Armed Career Criminal Act as
unconstitutionally vague. Price v. United States, 795 F.3d 731, 732 (7th Cir. 2015) (citing
Johnson, 135 S.Ct. at 2557). Wolf argues that Johnson extends to the parallel residual clause
in the career-offender guideline (Doc. 1). According to Wolf, that means his previous
convictions no longer count as predicate offenses for purposes of the career-offender
guideline, making his enhanced sentence improper (Doc. 1).
The Court determined that Wolf’s § 2255 petition survived preliminary review,
ordered the Government to respond to the petition, and appointed Assistant Federal
Public Defender Thomas Gabel to represent Wolf (Doc. 2). In its response, the
Government sets forth three arguments as to why Wolf’s petition should be denied:
(1) he waived his right to bring a collateral attack based on Johnson, (2) his claims have
been procedurally defaulted, and (3) in the alternative, his claims should be dismissed
on the merits because none of his qualifying convictions were based on the residual
clause of the career offender guideline (Doc. 4). Mr. Gabel agrees with the Government
that none of Wolf’s predicate offenses were classified as a crime of violence under the
residual clause (Doc. 11).
DISCUSSION
The Court will start with the argument addressed by both parties—whether

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Wolf’s qualifying convictions were based on the residual clause of the Career Offender
Guideline.
The career offender provision of the Sentencing Guidelines increases the offense
level and criminal history category, and thus the guideline imprisonment range, of
defendants who commit certain offenses after having been convicted of two felony
controlled substance offenses or “crimes of violence.” U.S. SENTENCING GUIDELINES
MANUAL § 4B1.1(a). At the time Petitioner was sentenced in December 2007, a
“controlled substance offense” was defined as “an offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that prohibits the
manufacture, import, export, distribution, or dispensing of a controlled substance (or a
counterfeit substance) or the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.
SENTENCING GUIDELINES MANUAL § 4B1.2(b) (2007). And a “crime of violence” was
defined as any state or federal crime punishable by imprisonment for a term exceeding
one year, that:
(1)

“has as an element the use, attempted use, or threatened use of
physical force against the person of another”; or

(2)

is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential
risk of physical injury to another.

U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (2007) (emphasis added). The
highlighted text is known as the “residual clause.”
The presentence report concluded that Wolf was a career offender under the
guidelines based on his prior conviction for unlawful delivery of a controlled substance

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(10-CF-2052), armed robbery (94-CF-607), and vehicular invasion (94-CF-657). United
States v. Wolf, SDIL Case No. 3:11-cr-30015, Doc. 39. It is clear that his convictions for
unlawful delivery of a controlled substance and armed robbery qualify as predicate
offenses for career offender purposes independent of the residual clause.
First, Wolf’s previous conviction for unlawful delivery of a controlled substance
qualifies as a predicate offense because it is a “controlled substance offense.” Second,
Wolf’s previous conviction for armed robbery qualifies as a predicate offense because
robbery is specifically enumerated as a “crime of violence” for career offender purposes.
United States v. Otero, 495 F.3d 393, 401 (7th Cir. 2007) (citing U.S. SENTENCING
GUIDELINES MANUAL § 4B1.2(a), Application Note 1 (2007) (“’Crime of violence’ includes
murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery,
arson, extortion . . . .”)). Additionally, the Seventh Circuit has repeatedly held that
robbery as defined by Illinois law is a crime of violence; therefore logic dictates that
armed robbery—which is robbery while armed with a gun—is also a crime of violence.
United States v. Smith, --- F. App’x ---, 2016 WL 5867263, at *1 (7th Cir. Oct. 7, 2016)
(noting previous holdings that a conviction for robbery under Illinois law is a crime of
violence under the elements clause of U.S.S.G. § 4B1.2) (citations omitted); United States
v. Melton, 75 F. App’x 539, 545 (7th Cir. 2003) (explaining that because the robbery statute
in Illinois “has as an essential element the threat or use of force,” it is a per se crime of
violence under U.S.S.G. § 4B1.2); United States v. Bedell, 981 F.2d 915, 916 (7th Cir. 1992)
(discussing why a conviction for robbery under Illinois law is a crime of violence under
U.S.S.G. § 4B1.2). See also 720 ILL. COMP. STAT. 5/18-2 (providing that a person commits

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armed robbery when they violate section 18-1, which is the robbery statute, while
“carr[ying] on or about his or her person or is otherwise armed with a firearm”).
In sum, at least two of Wolf’s previous felony convictions were defined as “crimes
of violence” for career offender purposes without any reliance on the residual clause of
§ 4B1.2(a). Therefore, his argument about the residual clause is not relevant. Even if that
weren’t the case, his argument was recently foreclosed by the Supreme Court’s recent
decision in Beckles v. United States, --- S. Ct. ---, 2017 WL 855781 (U.S. Mar. 6, 2017)
(holding residual clause in the career offender guideline is not void for vagueness).
Accordingly, Wolf’s § 2255 petition must be denied because it fails on the merits.
The Court need not reach the Government’s first two arguments.
CERTIFICATE OF APPEALABILITY
Wolf cannot appeal the denial of his § 2255 petition unless this Court or the Court
of Appeals issues a certificate of appealability. See FED. R. APP. P. 22(b); 28 U.S.C.
§ 2253(c)(1). Pursuant to § 2253, a certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). “That standard is met when “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner.” Welch v. United States, 136 S. Ct. 1257, 1263 (2016) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).
For the reasons detailed above, Wolf has not stated any grounds for relief under
§ 2255, and reasonable jurists could not debate that conclusion. Thus, Wolf has not made
“a substantial showing of the denial of a constitutional right,” and a certificate of

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appealability will not be issued.
CONCLUSION
Shawn Wolf’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255 (Doc. 1) is DENIED. The Motion to Withdraw filed by Assistant Federal
Public Defender Thomas Gabel (Doc. 11) is GRANTED. The Court DECLINES to issue a
certificate of appealability. This action is DISMISSED with prejudice, and the Clerk of
Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: March 8, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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